I Filed Brief for Reason, Cato Urging Supreme Court to Take Up California Foie Gras Ban

Last week, Reason Foundation (the nonprofit that publishes Reason, where I write a weekly food-law column) partnered with the Cato Institute to file an amicus curiae brief with the U.S. Supreme Court in support of the foie gras producers and sellers who are challenging California’s foie gras ban. I was honored to be asked to write and submit (as a member of the Supreme Court bar) the brief. In March, the plaintiffs asked the Supreme Court to take up their appeal after the Ninth Circuit Court of Appeals last fall reversed a U.S. District Court ruling that had struck down the ban.

The possible implications of a state animal-rights law that interferes with interstate and foreign commerce in animal products are already reverberating. Last year, in separate lawsuits, each brought by more than a dozen states, California and Massachusetts were sued over respective animal-rights laws in those states that similarly discriminate against interstate and foreign commerce.

Together, the California and Massachusetts laws target eggs, pork, and beef sales. If it seems as if a couple states can do widespread and lasting damage to livestock farmers, retailers, restaurateurs, consumers, and food freedom across the country, then that’s also the reality. That’s also what makes this foie gras case so important.

"This brief supports Reason's commitment to 'Free Minds and Free Markets,'" says Manny Klausner, a former editor of Reason, a Reason Foundation co-founder and board member, and attorney, who joined me in filing the brief. "And it's particularly satisfying for Reason to file a Supreme Court brief defending liberty that quotes Thomas Jefferson and James Madison's opposition to bans on various types of foods and liquors as 'lunacy' and 'despotic'—and also cites Escoffier, Julia Child, and Thomas Keller!"

I am proud to have had the opportunity to work with Reason Foundation and The Cato Institute and to lend my voice to the chorus urging the Supreme Court to take up this important case.

I'll Discuss My Book, Class-Action Food Lawsuits in Trio of Midwest Law-School Appearances Next Month

Fresh off a talk earlier this month at the University of Washington Law School, where I discussed my critically acclaimed book Biting the Hands that Feed Us: How Fewer, Smarter Laws Would Make Our Food System More Sustainable, I’ll be spending several days on the road next month to speak at three of the Midwest’s best law schools.

On March 5, I’ll give a book talk at the University of Missouri Law School in Columbia. Later in the month, on March 28, I’ll give another book talk, this one at University of Michigan Law School in Ann Arbor. Both talks are sponsored by the law schools’ respective Federalist Society chapters.

In the middle of the month, on March 16, I’ll take part in what’s sure to be a fascinating symposium put on by the Loyola Consumer Law Review at Loyola University Law School in Chicago. The symposium, "A Classless Act: Have Class Actions Lost Their Effectiveness as a Consumer Protection Tool?", focuses on the abuse and diminishing effectiveness of class-action lawsuits.

I’ll sit on a mid-day panel, "Class Actions That Give Bad Names: A Look at What Some Call Frivolous Litigation," alongisde Loyola Law School Prof. Jim Morsch. My talk will focus on class-action litigation targeting food makers, including suits targeting Wrigley and Subway. Later on, I’ll contribute an article which expands on my remarks to the Consumer Law Review’s 2018 Symposium Issue.

I’m grateful for these invitations to speak to and with law students and faculty members next month!

I'm Quoted in Great N.Y. Times Front-Page Piece on Regulations Impacting Small Apple Farmers

Earlier this week, the front page of the New York Times featured a thoughtful, well-researched article on ways that many regulations impact smaller food producers. That topic is at the heart of much of my research and writing, including my recent book, Biting the Hands that Feed Us: How Fewer, Smarter Laws Would Make Our Food System More Sustainable.

The great Times piece, by staff investigative reporter Steve Eder, focuses specifically on rules impacting small apple growers. It also quotes me at length. Here's a snip:

“So many of the farmers I’ve spoken with tell me that stricter and stricter regulations have put many of their neighbors and friends out of business, and in doing so cost them their homes, land and livelihoods,” said Baylen Linnekin, a libertarian-leaning expert in food law and policy, in an email. “For many farmers, rolling back regulations is the only way they can survive.”

[...]

Mr. Linnekin, the food lawyer and author of “Biting the Hands That Feed Us: How Fewer, Smarter Laws Would Make Our Food System More Sustainable,” predicted the new requirements would not lead to significant improvements in food safety.

“Instead, the result will likely be more of what we’ve experienced over the past few decades as regulations have ratcheted up,” he said. “More of our fruits and vegetables will be grown by large domestic producers who can afford to comply with the regulations — at the expense of smaller competitors — and by produce farmers abroad.”

I encourage you to click through and read the whole article. It's a balanced, refreshing look by the mainstream media at the issue of overregulation of food production and sales at a time when many politicians in Washington, D.C. at least claim to be taking a hard look at the problem.

In case you're long on time and short on things to read as the calendar turns to 2018, this week also saw publication of my latest op-ed, this one a look at a multi-state lawsuit against California over the latter's ban on some out-of-state eggs, which appears in the Orange County Register and several other leading Southern California newspapers.

Food Safety News Gives 'Biting the Hands that Feed Us' Thumbs Up

Food Safety News, the leading U.S. food-safety website, founded by Seattle food-safety litigator extraordinaire Bill Marler, has a nice writeup on me and my book, Biting the Hands that Feed Us. Here's an excerpt from the piece, written by Food Safety News editor Dan Flynn:

In the book, Linnekin can be blunt. He says FDA rules under the Food Safety Modernization Act “threaten to treat small farmers like manure and to treat manure–the lifeblood of organic fertilization and sustainable farming–as a toxin.”

Linnekin looks at how FDA threatened the livelihoods of “artisanal cheesemakers and beer brewers of all sizes” and barred people “from using sustainable methods to grow, raise, produce, prepare, sell and buy a variety of foods.”

As you may have guessed, “sustainability” is the prime directive for Linnekin. It’s on my list words in danger of becoming meaningless for its overuse by the lazy, but Professor Linnekin is precise in his choice of words. For Linnekin, whether a rule or regulation is helping or hurting sustainability is a crucial metric for measuring its effectiveness.

Linnekin does not blow off food safety. He says some rules are “necessary and desirable,” but he does question “blind faith” in rule makers.

Though Food Safety News (a website Flynn notes I've previously contributed to) generally speaks out in favor of more stringent regulations than I support--Marler, who I quote in Biting the Hands that Feed Us, does the same--it's clear from Flynn's words that he respects the measured approach I take in the book. Flynn is careful to note that Food Safety News doesn't "do" book reviews. If they did, though, he's also clear he'd recommend reading Biting the Hands that Feed Us.

"I’d say it a fascinating read, but that would sound like a book review," Flynn concludes.

Quite a good non-book-review review of my book, I'd say! If you haven't picked up the "fascinating read" that's currently Amazon's #1 Best-Selling book in the Environmental & Natural Resources Law category, what are you waiting for?

Food Law Speaking, Writing, & Teaching Updates

I recently returned from Los Angeles, where I served as a guest faculty member at UCLA Law School, which played host to law students from around the country as part of the Food Law Student Leadership Summit. It's my third year of teaching at the (now) three-year old summit, which brings together smart and interested Food Law & Policy students from around the country for a series of seminars, lectures, and workshops on a variety of food-law topics.

My seminar at UCLA focused on the law as it applies to foraging (e.g., for mushrooms), which is the subject of one of two law review articles I'm currently writing. The foraging article will appear in an upcoming edition of the Fordham Urban Law Journal. The other article, which I wrote with my frequent collaborator Emily Broad Leib, is an update to our 2014 article on the field of Food Law & Policy. The earlier article appeared in the Wisconsin Law Review. Our current article will be published by the Journal of Food Law & Policy.

I've also been working on other writing assignments of late. One such article is out in print but not yet online. It's an essay for the American Bar Association's GP Solo magazine. The article focuses on federal GMO regulation. Here's an ABA summary of my article.

Did you ever wonder where your food comes from? GMOs Engender Passion (and That’s a Poor Basis for Lawmaking) by Baylen J. Linnekin explains what is a genetically modified organism and discusses current laws pertaining to GMO agriculture and foods (including a recent federal GMO-labeling law). Linnekin also explains the role of three U.S. agencies (the U.S. Department of Agriculture, Food and Drug Administration, and Environmental Protection Agency) in regulating GMO agriculture and food and highlights recent and ongoing controversies pertaining to GMOs. The author argues that people are free to tout what they believe are the wonders or horrors of GMO foods and discusses whether the government’s policy on GMOs should be a neutral one.

Did you ever wonder where your food comes from? GMOs Engender Passion (and That’s a Poor Basis for Lawmaking) by Baylen J. Linnekin explains what is a genetically modified organism and discusses current laws pertaining to GMO agriculture and foods (including a recent federal GMO-labeling law). Linnekin also explains the role of three U.S. agencies (the U.S. Department of Agriculture, Food and Drug Administration, and Environmental Protection Agency) in regulating GMO agriculture and food and highlights recent and ongoing controversies pertaining to GMOs. The author argues that people are free to tout what they believe are the wonders or horrors of GMO foods and discusses whether the government’s policy on GMOs should be a neutral one.

Stay tuned for a link to my ABA article once it's live online. If you're starved for Food Law & Policy readings, check out this piece from the recent Washington Lawyer magazine that quotes me and several colleagues.

Finally, here's an update on my upcoming speaking appearances. In January, I'll be giving a book talk at University of Washington Law School as part of the school's Social Justice Tuesdays. The talk is co-sponsored by the law school's Food Law & Policy Association and its Environmental Law Group. In March, I'll travel to Ann Arbor to give a book talk at University of Michigan Law School. That talk is co-sponsored by the school's Federalist Society chapter and its Food Law Society.

That's all for now. I expect that I'll have more updates next month.